Employment Law: Employers Gain Edge In Defending Retaliation Claims

, The Connecticut Law Tribune

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Unfortunately, while retaliation claims are on the rise with shocking growth statistics, it is unlikely that this decision will have the floodgate-stopping effect that the deciding justices hoped for. Once a claimant identifies evidence of retaliatory animus, even if there is also evidence demonstrating a legitimate business reason for the employment action, it is the unique province of the jury to weigh the factors to determine which factor was the driving factor, the "but for" cause of the adverse employment action.

Definition Of Supervisor

On the same day, with the same array of justices on either side, came the decision in Maetta Vance v. Ball State University. In Vance, the Supreme Court decided to create a rather bright line rule that the definition of supervisor is one who makes tangible employment decisions, such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance v. Ball State University, 133 S.Ct. 2434, 2443 (2013).

Starting with the usual analysis of agency law as the precursor to employer vicarious liability, the Supreme Court in Vance went on to note that Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), identified two scenarios where an employer would be vicariously liable even in the absence of negligence: 1) "when a supervisor takes a tangible employment action (with illegal animus), and, 2) when the claimant can demonstrate a hostile work environment at the hands of the supervisor and the employer is unable to raise an affirmative defense such as, i) that it exercised reasonable care to prevent and promptly correct illegal behavior, and ii) that the claimant "unreasonably failed to take advantage of any preventive or corrective opportunities that were provided."

Through the years, there was a split in the lower courts as to the definition of a supervisor. Some courts held that an employee is not a supervisor unless he or she can take "tangible employment decisions such as hiring, firing, promoting, demoting, transferring or disciplining" the victim. Other courts followed the ambiguous delineation suggested by the Equal Employment Opportunity Commission — that the determination was based upon whether or not the individual had "significant direction over [the claimant's] daily work."

In Vance, the Supreme Court decided to narrow analysis of who constitutes a supervisor by stating that a supervisor is one who may effect a "significant change in employment status, such a hiring, firing, failing to promote, reassignment which significantly different responsibilities, or a decision causing significant change in benefits."

On the same day as the Nassar decision, echoing the Nassar decision, the Vance majority made the same argument for judicial economy, without calling it that, to justify its bright line rule regarding the definition of a supervisor. Ultimately, the Supreme Court majority opined that its definition would avoid juror confusion, which is a real concern in employment law cases.

The Court observed in Vance that its rule regarding the definition of supervisors has been the law of three circuits: the First, Seventh and Eighth Circuits. "We are aware of no evidence that this rule has produced dire consequences in these …jurisdictions."

It is doubtful that the Supreme Court's definition of supervisor will produce anything dire, other than to shield employers from vicarious liability in certain situations. It remains very important for employers to proactively manage their workplace environment, keeping it free from harassment and discrimination. Even where a claimant can't show that their harasser is a supervisor, employers can still be liable under the theory of negligently failing to prevent harassment in the workplace.•

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